That’s the punchline of a podcast Radiolab just released this week, provocatively titled “Sex, Ducks and The Founding Feud”. Along with John Bellinger, Joseph Ellis and Nick Rosenkranz, I was interviewed for the story by Jad Abumrad and Kelsey Padgett. It was a fun experience overall trying to explain to a general audience the importance of the US treaty power and how it plays out in the Bond case, and Missouri v Holland before that. On the whole, I enjoyed hearing some fabulous sound editing (which is not surprising given Jad’s previous work won him a McArthur Genius award). Entertaining as it is though, I also found the piece quite thoughtful in framing the importance of the treaty power and offering both sides of the arguments, even if one might quibble over a few details here and there (eg the constitutionality of the implementing legislation versus that of the treaty).

Lots of commentary today here and elsewhere on yesterday’s oral arguments in Bond v. United States, with vote-counters quick to predict the Court will retreat from Missouri v. Holland and the question is only how much. I have views on the merits, but, frankly I’m having trouble getting passed the fact that two Supreme Court justices, the Solicitor General, and one of his predecessor’s, Paul Clement, seem to not understand how treaty-making works.

Simply put, throughout the argument, there were statements indicating a real misunderstanding of what it means for the United States to sign a treaty like the Chemical Weapons Convention. To be clear, sometimes U.S. signature of a treaty can have immediate legal effect — what’s known as definitive signature — which is most often witnessed in bilateral agreements on topics within the President’s executive powers. But for centuries now (actually as a byproduct of the U.S. revolution itself), the general rule for multilateral treaties is that a State signing a treaty does notbind the State to the treaty’s provisions; a further act of ratification is required. It is the State’s deposit of this instrument of ratification for a treaty that’s in force which triggers the obligation to comply with the treaty’s requirements. Signing treaties subject to ratification — what is known as “simple signature” serves several useful purposes — it signals the conclusion of negotiations, the signing State’s intention to commence domestic procedures to join the treaty, and the identify of those who can participate in preparatory meetings. But it does not obligate the State to implement, observe or otherwise comply with any, let alone all, of the treaty’s articles. The only international legal obligation a signatory State assumes is one not to defeat the treaty’s object and purpose pending its consent to the treaty (in which case it is bound to comply with it) or an indication that it does not intend to ratify the treaty.

But no one yesterday showed any sign that they understood the way treaty signature operates. Take Chief Justice Roberts opening inquiry to Solicitor General Verrilli (see transcript p. 27):

General, let’s suppose there’s a multilateral treaty, the — the international convention to ensure that national legislatures have full authority to carry out their obligations, i.e., that the national legislature has the police power. And Congress passes a statute saying we have the authority to prosecute local crimes pursuant to this international convention that the President has signed. Any problem with that? (emphasis added)

Well, yes. If the President had merely signed the treaty and not actually ratified it, the treaty power would not afford any basis for Congress’ legislation and this would be a straight-forward Article I case. Indeed, it would be like Congress deciding to pass legislation implementing the Kyoto Protocol or the Rome Statute to the International Criminal Court — two treaties a U.S. President has signed — without any further approval by the Senate, let alone ratification by the President (a ratification which, I’d note, the President is not required to do even if the Senate gives its advice and consent to ratification).

Of course, the Chief Justice probably meant a treaty that the President had “ratified” — and Verrilli certainly took the question that way. But I’m worried that both were a bit oblivious to the distinction. I can only imagine what people would say if a Supreme Court Justice has posed a hypo that confused a bill with a statute during an oral argument. And if that’s not OK, why is it OK to make such a simple mistake about treaty-making?

Now, if this were an isolated incident, I’d be willing to write it off as simply a shorthand-error that both sides ducked around to get at the real — and certainly important — issues at the heart of the Bond case. But, this wasn’t the only misuse of treaty signature yesterday. More details, after the jump . . .

Things are continuing to gear up here in the United States for the big foreign affairs law case of the year — U.S. v. Bond, which, among other things may allow the Supreme Court to revisit one of its most significant foreign affairs law cases ever – Missouri v. Holland. Bond asks two questions: (1) whether the Constitution limits Congress’s authority to legislate to implement a valid treaty if it intrudes on traditional state prerogatives, and (2) if the legislation in question — the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases to avoid issue (1) and, with it, the “scope and continuing vitality of . . . Missouri v. Holland“. Oral argument is set for November 5, 2013, and SCOTUSblog has its regular (and excellent) set of links to all the relevant briefs.

So far, most of the attention in the case has centered on Issue (1), asking whether the Necessary and Proper clause can serve as a vehicle for implementing U.S. treaty obligations, which otherwise might lie outside Congress’ authorities under Article I. That, after all, was the central holding of Holmes’ opinion in Missouri and it’s the one that most scholars fear — or, hope, depending on their disposition — may be overturned by the current Court (for more on this see my earlier posts as well as the detailed exchanges between Rick Pildes and Nick Rosenkranz over a Volokh). But, there may be other constitutional grounds for upholding the Chemical Weapons Implementation Act in addition to the Necessary and Proper Clause. The U.S. Government, for example, has argued that the Commerce Clause also afforded Congress authority to pass that Statute. This is not a surprising argument. The Commerce Clause’s expanded jurisprudence is one of the main reasons Missouri v Holland has been so little tested in the decades following Holmes’ impassioned assertion of a dynamic reading of the treaty power.

Beyond the now-standard Necessary and Proper/Commerce Clause arguments, however, I was surprised to recently read about a third claim for constitutional authority — the Offenses Clause. In August, Professors Sarah Cleveland and Bill Dodge (who have both served as Counselors in the State Department Legal Adviser’s Office) filed an amicus brief arguing that the Offenses Clause authorizes Congress to define and punish offenses in implementation not just of customary international law, but U.S. treaty obligations as well (e.g., the Chemical Weapons Convention). They’ve now posted a scholarly exposition of their argument on SSRN. Here’s the abstract:

The Offenses Clause of the Constitution gives Congress power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Past scholarship has assumed that the Clause allows Congress to enforce only customary international law. This article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional source of authority for Congress to implement certain treaty commitments. The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called “the conventional law of nations.” The history of the Offenses Clause shows that it was intended to reach treaties and thus to facilitate compliance with the United States’ international commitments. Moreover, despite the prevailing view in the academy, Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.

The Offenses Clause provides a cautionary tale about the dangers of reading constitutional text without sensitivity to its historical background and demonstrates the need for care in translating that text into modern terms. Our argument also has significance for a range of contemporary contexts — from piracy to international counter-narcotics activity — and for the case of Bond v. United States, currently pending before the United States Supreme Court. Most fundamentally, our argument contributes to understanding the role of international law in our constitutional scheme. It underscores the importance that the Framers placed on crafting a national government with robust authorities to fully enforce treaties and customary international law.

I find myself fairly convinced of the paper’s historical claim — that the reference to the law of nations at the time of the Framing included U.S. treaty obligations. Thus, I think their argument is one the Court can (and should) consider in the Bond case. In doing so, however, I think there are a few areas where the Cleveland/Dodge position requires further exposition. Let me highlight three after the jump.

At first glance, it seems an important and fascinating case because it is the first time the U.S. Supreme Court will revisit any aspect of the famous 1920 Oliver Wendell Holmes Jr.’s decision in Missouri v. Holland. That decision, arguably the most famous decision in the U.S. foreign affairs law canon, held that the treaty power was not constrained by the state’s rights limitations in the Tenth Amendment of the U.S. Constitution. It also held that Congress’ power to implement treaties through normal legislation is similarly unconstrained.

By agreeing to decide Bond, the Supreme Court may reconsider the second (and less famous) of those two holdings. That second holding, on the much understudied “treaty implementation” power, was challenged in a 2005 Harvard Law Review article by Georgetown Professor Nicholas Rosencranz.(BTW, large congratulations should go to Nick for almost single-handedly creating, or at least reviving, this argument.)

As a matter of high constitutional principle about the nature of the U.S. Constitution’s grant of enumerated powers, this could be a huge case. But there are reasons to doubt the practical importance of any decision by the Court to revisit Missouri v. Holland in the context of Bond. Why? Because the central holding of Missouri v. Holland was that treaties are not constrained by the Tenth Amendment. Even if the Court holds that Congress cannot use a treaty to exceed its Article I powers, the President and Senate could still simply use a self-executing treaty to implement the same obligations (as Prof. Rick Pildes argues here).

Having said all that, a favorable decision for the petitioners in Bond could still have a practical impact by reviving that almost extinct constitutional creature: the self-executing treaty. The President and Senate, at least in the past few decades, have very rarely approved self-executing treaties outside of a few subject matter areas (like taxes, extradition, and investment). Big important treaties, such as human rights treaties, have generally been approved on the condition they are non-self-executing. (Go ahead, name the most important self-executing treaty of the past thirty years. That Tax Convention with Chile?) Or they are approved like most trade agreements via the route of the congressional-executive agreement.

So Bond might actually result in giving the President and the Senate the incentive to go the “self-execution” route. As a matter of politics, this might be difficult in today’s Senate, but I think future treaty supporters might not think it would be safer to go the self-execution route to avoid future Bond-like challenges to their treaties.

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